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Challenge to H-4 Visa Work Authorizations Can Move Forward

Immigration textbook with gavel
By Joseph Fawbush, Esq. on November 11, 2019

In 2015, the Obama Administration began allowing spouses of H1-B visa holders to obtain jobs in the U.S., provided the H1-B visa had been approved for an extension. These spouses, who are in the U.S. on an H-4 visa, mostly comprise women from India who are looking to supplement family income. The intention of the rule is to keep H-1B visa holders in the U.S. while seeking lawful permanent residence, instead of abandoning those efforts because of the economic hardship associated with a spouse being unable to join the workforce.

Save Jobs USA, a conservative advocacy group, sued, alleging that the Department of Homeland Security exceeded its authority in adopting the rule. In 2016, a district court judge granted summary judgment in favor of the DHS, finding that the members of Save Jobs lacked standing since they did not show that they would be directly harmed by the rule.

Lawsuit Revived, Even as Trump Administration Plans to Revoke Rule

Initially, the D.C. Circuit Court of Appeals put the case on hold, waiting for the Trump Administration to evaluate the rule. On November 8, it issued a unanimous opinion finding that the members of Save Jobs do have standing to contest the rule.

Meanwhile, last September, the Department of Justice told the D.C. Circuit, in a filing, it plans to issue a proposed rescinding of the rule in 2020.

The panel, in a unanimous opinion, found that Save Jobs does have standing to bring a claim against the DHS. As the court noted, it has repeatedly held that individuals who compete in a labor market have standing when government action leads to an increased labor supply, and thus more competition.

Further, two affidavits from the members of Save Jobs were sufficient evidence to show that, as IT specialists at Southern California Edison who were replaced by H-1 visa holders, they were harmed by the rule.

Interest Groups Will Watch Closely as Case Will Move to Merits

Business groups, including the U.S. Chamber of Commerce, are in favor of the rule, arguing that it keeps highly skilled workers who are on the path to becoming lawful permanent residents in the country, and fills jobs for which no other American workers are qualified.

Worker advocacy groups oppose, arguing that it allows companies to overlook qualified American applicants in favor of cheaper labor.

It remains to be seen how the case will resolve on the merits, and the current Administration's plan may render the case moot. For now, however, H-4 visa holders can still obtain work authorization.

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